Pickens County, the South Carolina Department of Transportation, also
all other persons unknown claiming any right, title, interest in or
lien upon the real estate described herein as a portion of Cleo Chapman
Highway; unknown adults as being as a class designated as John Doe;
unknown infants, persons under disability or in a military service being
as a class designated as Richard Roe, Earnest W. Cooler, Jr., Dot Robertson
and Roger D. Gravely,

Of Whom South Carolina Department of Transportation is, Respondent,

and Dot Robertson, Roger D. Gravely and Will Gravely, (as a member
of the class of persons designated as John Doe or Richard Roe) are,
Appellants.

PER CURIAM: Keowee Investment Group, LLC
(Developer) and the Cliffs at Keowee Vineyards Community Association, Inc. (the
Association), commenced this action pursuant to S.C. Code Ann. section 57-9-10
(1991), seeking to close a highway that adjoined property in the Cliffs at Keowee
Vineyards subdivision. The trial court found closing the road was in the best
interest of all concerned, determined the Developer and the Association should
have title to the road, and required access must remain open to all interested
in visiting McKinney Chapel. We affirm.

FACTS

Developer owned 1,200 acres of land in Pickens County that it developed into
the Cliffs at Keowee Vineyard subdivision. The Association is an association
of the property owners within the subdivision, and it owns and maintains all
the roads and common areas within the subdivision. The subdivision abuts a
portion of a public road known as Cleo Chapman Highway (the highway). McKinney
Chapel and cemetery is at the end of the highway. McKinney Chapel is at least
one hundred years old, and the historic church is maintained by Grace United
Methodist Church (Grace UMC). Services are held at McKinney Chapel on a monthly
basis and for special events.

Concerned about security, Developer and the Association
(collectively, Respondents) sought to close 14,000 feet of the highway that
is located within the boundaries of the subdivision. They brought this action
to close the highway against Pickens County, the South Carolina Department of
Transportation, and a class of unknown persons who may claim some interest in
the highway, pursuant to section 57-9-10. The private roads of the subdivision
connect to the highway within the portion they sought to close. Several other
landowners, who owned property adjacent to the highway but were not within the
subdivision, also supported the privatization of the highway.

Dot Robertson, Roger D. Gravely and Will Gravely
(collectively referred to as Appellants) intervened as members of the class
of persons designated as John Doe or Richard Roe in order to keep the highway
open to the public for access to the historic chapel and cemetery.

Shortly after petitioning to close the highway,
Developer and Grace UMC reached an agreement regarding public access to the
chapel and cemetery if the highway were closed. The agreement: granted Respondents
the right to construct a security gate to control access to the highway; granted
visitors and guests to the chapel and cemetery a nonexclusive perpetual easement
over the highway; and provided that Developer would maintain the chapel and
cemetery grounds. The agreement also provided that visitors could access the
chapel and cemetery at any time and on any day by informing the guard at the
security gate of their destination; there would be no registration requirement.

Just prior to the filing of the petition, Pickens County passed a resolution
calling for access to the chapel. It provided:

NOW, THEREFORE, BE IT RESOLVED THAT Pickens County is opposed to the gating
for private development of all state roads and of county arterial and collector
roads. Where public roads are closed, provision must be made to allow public
access to significant cultural and natural resources that have traditionally
been provided to residents of Pickens County.

BE IT FURTHER RESOLVED that Pickens County requests that any access agreement
for Cleo Chapman Highway be irreversible and subject to periodic review to
assure that access provisions are maintained in good faith.

Pickens County Res. No. 01-15.

At trial, Respondents provided evidence of vandalism
and other crimes that have occurred along the portion of the highway they sought
to close. They detailed the litter problems resulting from people traveling
the highway. Respondents provided evidence of another development in which
they were successfully allowing access to an active church down a closed road
behind the development’s security gate.

Many of the other landowners who own property adjacent
to the closed portion of the highway testified regarding the impact on their
property. Several echoed the sentiment that the gate would decrease vandalism,
crime, and litter. They further testified that their property values would
be enhanced by the addition of the gate.

Appellants appeared prose at the
hearing. They testified that closing the highway would unnecessarily restrict
access to the chapel. They provided testimony from individuals who would feel
uneasy having to go through the gate in order to access the chapel. Appellants
presented a petition signed by 4,000 individuals opposed to closing the highway
because it might inhibit public access to the chapel.

The trial court recognized the importance of maintaining
public access to the chapel and cemetery. The court found the agreement allowed
access to the chapel, did not unnecessarily restrict the movements of those
seeking to visit, and was not contrary to the Pickens County resolution. The
agreement was incorporated into the final order such that if Respondents violated
the terms, it would be a violation of the order.

In determining whether to close the highway, the
trial court considered the petition opposing the closing signed by 4,000 local
residents. However, the court found the residents signing the petition were
not aware that they would be given permanent access to the chapel. The court
also found the closing of the highway pursuant to the terms of the agreement
would be in the best interest of all concerned. The court determined the security
of the area would be enhanced and the property owners in the area would not
be adversely affected. Finally, the court found that title to the highway would
be vested in Respondents.

Appellants filed a prose post-trial petition for reconsideration.
The trial court held the petition was “fatally flawed” because it was not served
upon the DOT and affirmed its prior findings on the merits. This appeal followed.

STANDARD OF REVIEW

The parties dispute whether a legal or equitable standard of review should
be applied. Our supreme court has analyzed a trial court’s decision to close
a road pursuant to statute under an abuse of discretion standard. First
Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 229, 417 S.E.2d
592, 594 (1992) (finding that in light of the evidence in the record supporting
the road closing, the trial court properly considered the public’s interest
as required by statute and no abuse of discretion occurred). An abuse of discretion
occurs when a trial court’s decision is unsupported by the evidence or controlled
by an error of law. Ledford v. Pa. Life Ins. Co., 267 S.C. 671, 675,
230 S.E.2d 900, 902 (1976). Accordingly, we will reverse the court’s decision
to close the highway only if the decision is unsupported by the evidence.

LAW/ANALYSIS

I. Subject Matter Jurisdiction

Appellants argue the trial court erred in: (1) ruling that their post-trial
motion for reconsideration was fatally flawed because it was not served upon
the DOT; and (2) making this ruling sua sponte. Respondents assert that
because Appellants failed to serve the DOT, their post-trial motion did not
toll the time period for filing their notice of appeal, and, thus, this court
does not have subject matter jurisdiction to entertain the appeal.

In order to perfect an appeal to this court, a party must serve the notice
of appeal on all parties within thirty days of receipt of the written notice
of final order or judgment. Rule 203(b)(1), SCACR. When a party files a timely
post-trial motion for judgment notwithstanding the verdict (j.n.o.v.) pursuant
to Rule 50(b), SCRCP, to alter or amend the judgment pursuant to Rules 52 and
59, SCRCP, or for a new trial pursuant to Rule 59, SCRCP, the time period for
filing the notice of appeal is tolled until receipt of written notice of the
order granting or denying the post-trial motion. Id. The timely service
of the notice of appeal is a jurisdictional requirement, and the appellate courts
have no authority to “extend or expand the time in which the notice of appeal
must be served.” Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206,
207 (1985) (interpreting former Supreme Court Rule 1, §§ 1 A and 1 C). The
failure to timely serve the notice of appeal “divests this court of subject
matter jurisdiction and results in dismissal of the appeal.” Canal Ins.
Co. v. Caldwell, 338 S.C. 1, 5, 524 S.E.2d 416, 418 (Ct. App. 1999).

In the present case, Appellants intervened as defendants in Respondents’ suit
against Pickens County, the DOT, and other unknown persons claiming some right
or interest in the particular section of the highway they sought to close.
Although named as a defendant in the action, the DOT filed an answer expressing
that it had no objection to the closing of that section of the highway. After
answering the complaint, the DOT notified Respondents’ counsel that it would
not appear at the hearing, and DOT did not appear further in the action. Appellants
timely filed their prose motion for reconsideration pursuant
to Rules 52(b) and 59(a) and (e), SCRCP. However, Appellants failed to serve
their co-defendant, the DOT, with the motion.

In ruling on the post-trial motion, the trial court
noted that Rule 5, SCRCP, requires that every written motion must be served
on all parties not in default. Rule 5, SCRCP (“Every . . . written motion .
. . shall be served upon each of the parties; but no service need be made on
parties in default for failure to appear. . . .”). The court found, sua
sponte, that Appellants’ failure to serve the DOT with the post-trial motion
pursuant to Rule 5 was a “fatal error” that rendered Appellants’ post-trial
motion untimely and of “no effect.” The court alternatively denied Appellants’
post-trial motion on the merits. Appellants filed their notice of appeal within
thirty days after receiving written notice of the order denying their motion
for reconsideration.

Regardless of whether the trial court erred in ruling on this issue sua
sponte, we find the court erred in its interpretation of the effect of Rule
5, SCRCP. Although Rule 5 does require service of motions on all parties to
an action, nothing in the rule indicates that failure to serve all parties is
a jurisdictional requirement, rendering the motion of “no effect,” or as if
it had never been filed. The trial court still had jurisdiction to hear post-trial
motions timely filed in the case. SeeFarmer v. Monsanto Corp.,
353 S.C. 553, 557, 579 S.E.2d 325, 327 (2003) (“Subject matter jurisdiction
is the power to hear and determine cases of the general class to which the proceedings
in question belong.”) (citing Dove v. Gold Kist, Inc., 314 S.C. 235,
237-238, 442 S.E.2d 598, 600 (1994)); seealsoState v. Brown,
358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004) (holding that where a defendant
failed to file his notice of appeal within ten days of his magistrate court
conviction, the failure to comply with the procedural requirements divested
the circuit court of appellate jurisdiction, not the subject matter jurisdiction
to hear and determine that class of appeal).

Clearly, failure to serve a particular party with
a motion or order adverse to that party’s rights would render it ineffective
against that party. See, e.g., Connor v. City of Forest Acres,
348 S.C. 454, 461-62, 560 S.E.2d 606, 609-10 (2002) (noting that service of
the notice of intent to appeal is a jurisdictional requirement, and the failure
to serve particular parties meant they were not part of the appeal); Universal
Benefits, Inc. v. McKinney, 349 S.C. 179, 183, 561 S.E.2d 659, 661 (Ct.
App. 2002) (noting that judgments should not be issued without notice to a party
whose rights are affected, the court stated that “a person against whom a judgment
or order is taken without notice may rightly ignore it and may assume that no
court will enforce it” against him). However, the rules do not indicate that
failure to serve one party renders the motion untimely or completely ineffective
against the other parties served.

We see no prejudice where, as in the present case,
the party not served with a post-trial motion was disinterested in the action.
The DOT did not contest Respondents’ petition and did not appear at the hearing
to voice opposition to Appellants’ position. Because the DOT was not interested
in asserting any rights in the matter, its substantial rights were not prejudiced
by the lack of its presence at the post-trial hearing. [1] Brown v. Mickens, 256 S.C. 346, 348,
182 S.E.2d 417, 417-18 (1971) (“Generally, a party interested in resisting
the relief sought by a motion has a right to notice sufficient to give him an
opportunity to be heard.”) (emphasis added); seeNishitani v. Baker,
921 P.2d 1182, 1192-93 (Haw. Ct. App. 1996) (noting that although plaintiffs
violated Hawaii Rule of Civil Procedure Rule 5(a) by failing to serve the defendants
with notice of substitution, the court concluded that “such failure did not
affect Defendants’ substantial rights and was, thus, harmless error”).

Although Appellants violated Rule 5 by failing to serve
the DOT with notice of the post-trial motion, there is no evidence that the
DOT’s substantial rights were prejudiced. Thus, the motion was timely filed
and served upon the interested parties in the action. Accordingly, the trial
court erred in finding the failure to serve the DOT rendered the post-trial
motion ineffective.

We now turn to the question of whether Appellants’ appeal was timely. Because
we have already determined that Appellants’ post-trial motion was timely, the
motion tolled the time period for filing their notice of appeal until after
receipt of the order denying the motion. Rule 203(b)(1), SCACR. Appellants
served their notice of appeal within thirty days of receipt of the order denying
the motion. Accordingly, their notice of appeal was timely and this court has
jurisdiction to hear the appeal.

II. Closing of the Highway

Appellants argue the trial court misconstrued the facts and erred in closing
the highway. We find the trial court did not abuse its discretion because there
is sufficient evidence in the record to support the court’s decision.

Section 57-9-10 provides: “Any interested person, the State or any of its political
subdivisions or agencies may petition a court of competent jurisdiction to abandon
or close any street, road or highway whether opened or not.” S.C. Code Ann.
§ 57-9-10 (1991). The determination is controlled by a best interest standard:
“If the court shall determine that it is to be the best interest of all concerned
that such street, road or highway be abandoned or closed, the court shall then
determine in whom the title thereto shall be vested and issue an appropriate
order.” S.C. Code Ann. § 57-9-20 (1991).

The South Carolina Supreme Court addressed the appropriate interest to be
considered in closing a road:

A public street may not be vacated for the sole purpose of benefiting an
abutting owner. However, the mere fact that the vacation was at the instigation
of an individual who owns abutting property does not invalidate the vacation
or constitute abuse of discretion, nor does the fact that some private interest
may be served incidentally. On the other hand, it must appear clearly that
no consideration other than that of public interest could have prompted the
action.

First Baptist Church of Mauldin, 308 S.C.
at 229, 417 S.E.2d at 594 (citations omitted).

The reasons proposed by Respondents for closing the portion of the highway
included: safety of residents of the development and other landowners; a need
to decrease vandalism in the area; and a need to reduce other crimes occurring
along the highway. Respondents also noted that McKinney Chapel would be protected
from vandalism by closing the highway.

Several landowners and other individuals testified
regarding the vandalism of property along the highway. Deputy Dewey Smith of
the Pickens County Sheriff’s Department testified that the Sheriff’s Department
would not be able to provide adequate security for the residents of the development
because of its location and distance from the Sheriff’s Office. While many landowners
abutting the highway testified that their property values would increase after
the closing, they also explained one of the main reasons for closing the highway
would be to provide better security to landowners and the chapel.

Jim Anthony, president of the Developer, testified
that reports of vandalism and other serious crimes had decreased as a result
of hiring security personnel, but he and landowners in the development sought
to close the highway to increase security. Anthony admitted that closing the
highway and increasing security would increase the value of the property within
the development and along the closed portion of the highway. Anthony also detailed
his experience in operating another gated road, which provided access to an
active church under an agreement with the church for ten years without a problem.

Both Anthony and Joe Durham, Chairman of the Board
of Trustees of Grace UMC, testified regarding the agreement to allow access
to McKinney Chapel and cemetery. Both believed the gate would increase security
for the chapel and help preserve it as a historical or tourist location.

Several individuals with ties to the chapel or
cemetery expressed concerns that a gate would restrict access or intimidate
people wishing to visit McKinney Chapel or cemetery. Thomas Watson testified
that he was followed to the chapel by a man in an unmarked car who observed
him for an extended period of time. He feared that if the gate is erected and
visitors to the chapel are monitored, it would be very intimidating. Finally,
Dot Robertson testified regarding the history of McKinney Chapel, expressed
concerns regarding the public’s access to the historical site, and presented
a statement from the Sierra Club expressing their concern over the possible
loss of public access to the church.

Patrick Bryant presented the court with a petition
signed by 4,000 people in both Pickens and Oconee counties opposing the closing
of the highway. It is not clear whether the individuals signing the petition
knew of the agreement between Developer and Grace UMC to provide access to McKinney
Chapel. However, Bryant testified he still believed persons wanting to visit
the chapel through the gate would be prevented from doing so, notwithstanding
the agreement.

It is clear that the trial court was concerned
about restricting access to the chapel. However, we find, based upon the evidence
presented at trial, the court appropriately considered the benefits and detriments
to everyone involved. The agreement between Developer and Grace UMC provides
substantial access to anyone wishing to visit the chapel or cemetery. Although
the court expressed some concern regarding how the agreement would be enforced,
the agreement was ultimately incorporated in the court order so that any violation
of the agreement could be considered contempt of the court order and appropriate
sanctions would apply.

Nevertheless, Appellants argue that the trial court
erred in finding the agreement did not violate the Pickens County resolution
because bringing a contempt action would be burdensome. The evidence supports
the trial court’s finding that the agreement allows unfettered access, complies
with the resolution, and provides an appropriate remedy in the nature of a contempt
action.

The evidence also supports a finding that security
in the development and at the chapel would be increased by closing the highway
and installing the security gate. There was uncontested testimony that the
Developer had successfully operated a security gate in another development that
still allowed unfettered access for members of an existing church inside the
gate. The trial court properly considered the interests of all persons concerned,
and more importantly the public at large, in rendering its decision.

Finally, Appellants argue the trial court erred in discounting the petition
signed by 4,000 residents opposing the highway closing. The trial court specifically
held that it believed the persons signing the petition were unaware they would
be given permanent access to the chapel. It does appear that the petition was
circulated prior to execution of the agreement providing access between the
Developer and Grace UMC. Thus, the trial court did not err in this finding.

The trial court rendered its decision to close
the Highway after carefully considering the interests of the public. Accordingly,
we find no abuse of discretion in the court’s decision to close the portion
of the highway at issue.

III. Title to the Closed Highway

Appellants maintain the trial court erred in vesting title in Respondents once
it determined the highway should be closed. We disagree.

First, Appellants lack standing to assert the trial
court improperly transferred title to Respondents. Appellants contend the rightful
owner is the DOT. However, Appellants have not asserted any right to the property
or claim title should have been vested in them. “A party cannot appeal from
a decision which does not affect his or her interest, however erroneous and
prejudicial it may be to some other person’s rights and interests.” Beaufort
Realty Co. v. Beaufort County, 346 S.C. 298, 301, 551 S.E.2d 588, 589-90
(Ct. App. 2001). DOT, and not Appellants, would be the appropriate party to
appeal this determination.

Even if Appellants had standing to raise the issue,
the trial court properly transferred title to Respondents. The road closing
statute provides that once a court determines that closing a road is in the
public interest, it may determine in whom title should be vested. S.C. Code
Ann. § 57-9-20 (1991). The power to declare ownership of the closed road does
not grant the court the power to create or destroy a fee simple interest in
the property. The court may only declare who owns legal title. Hoogenboom
v. City of Beaufort, 315 S.C. 306, 318-19, 433 S.E.2d 875, 884 (Ct. App.
1992). Further, “in the absence of some statutory disposition, abandonment
or vacation of a public street vests absolute possession and title in the abutting
property owners. . . .” City of Greenville v. Bozeman, 254 S.C. 306,
317-18, 175 S.E.2d 211, 216 (1970).

In its answer, Pickens County stated that it had never owned or maintained
any portion of the highway. DOT noted in its answer that the land which later
became the highway came within the state highway system in approximately 1940.
Appellants presented DOT documents at trial dating back to 1939. The documents
all indicated that DOT had a right-of-way over the highway, not fee simple title.

In its order, the trial court referred to DOT as the
“owner” of the highway. Nevertheless, after determining that closing the highway
would benefit the public, the court vested title in the highway to Respondents.
In their post-trial motion, Appellants alleged the trial court erred in vesting
ownership in Respondents after finding the DOT was title owner of the highway.
In the order denying the post-trial motion, the trial court clarified its prior
order stating that the evidence supported a finding that the DOT owned only
a right-of-way over the property, and thus, the title to the property was correctly
vested in the abutting landowners.

The evidence supports the trial court’s determination. Although the initial
order closing the highway mistakenly refers to DOT as the “owner,” all the evidence
supports the trial court’s subsequent order that the DOT owned only a right-of-way.
Therefore, title to the property upon closing the highway was correctly vested
in Respondents as abutting landowners. Accordingly, we find the trial court
did not abuse its discretion in transferring title in the closed portion of
the highway to Respondents.

CONCLUSION

We find the trial court did not abuse its discretion in closing a portion of
the highway. The evidence in the record supports the finding that, while it
did benefit adjoining landowners, it would also be in the best interest of the
public. Additionally, we hold the court properly transferred title in the closed
portion of the highway to Respondents. Accordingly, the decision of the trial
court is

AFFIRMED.

HEARN, C.J., STILWELL, J., and CURETON, A.J., concur.

[1] Interestingly, the DOT has not filed a brief in this appeal to complain
about its lack of notice of the post-trial hearing.